(영문) 제주지방법원 2013.8.22.선고 2012노261 판결

Defendant shall be punished by imprisonment with prison labor for up to eight months and by a fine of up to 50,000 won. If the Defendant fails to pay the above fine, the Defendant shall be confined in the workhouse for a period calculated by converting 50,000 won into one day.

However, the execution of the above imprisonment shall be suspended for two years from the date this judgment becomes final and conclusive, and an amount equivalent to the above fine shall be ordered to be paid provisionally.

Reasons

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts or misapprehension of legal principles

A) On the first lower judgment

(1) The point of interference with each business

Since each act of the defendant does not correspond to the "compact of interference with business" and it cannot be deemed that there was an obstacle to the progress of construction, it shall not be deemed that there was a danger of interference with business. The judgment of the court below which found the defendant guilty is erroneous in

(2) The point of violation of the Punishment of Minor Offenses Act is public waters and the right to manage the public waters is located in the Jeju Special Self-Governing Province Governor (to which the authority was delegated) and the naval headquarters is not considered to acquire the right to manage the waters even if it was granted a reclamation license on the old forumba and the coast. Since there was no disposition prohibiting entry into and exit from the return market, the former forumba and the coast do not constitute an area, facility or place where entry is prohibited under Article 1 subparag. 49 of the Punishment of Minor Offenses Act (hereinafter referred to as "entry prohibited place").

Furthermore, it is not consistent with the legislative intent of the above law to punish the entry into this place because the old forum, the flab and the coast do not have any relation to the retirement storming or social assistance. The violation of the Punishment of Minor Offenses Act does not have the authority to prosecute the prosecutor.

B) On the second judgment of the court below, the construction project of Jeju naval base was illegally conducted, which is not worthy of protection under the Criminal Act, and each act of the defendant does not constitute a "defensive force of interference with business." Since the defendant exercises a citizen's right to appeal against unfair national policy projects, it constitutes a legitimate act or an act of emergency evacuation.

2) Unreasonable sentencing

The sentencing of each court (the first instance court: the suspended sentence of 1 year and the fine of 50,000 won and the second instance: the suspended sentence of 6 months) is too unreasonable.

(b) Prosecutors;

The sentencing of each court below is unfair because the sentencing of each court below is too uneasible.

2. Ex officio determination

Before the judgment on the grounds for appeal was made ex officio, the appeal case against the judgment below was consolidated. Each of the offenses listed in the judgment below is a concurrent offense relationship under the former part of Article 37 of the Criminal Act, and should be sentenced to a single sentence within the scope of the term of punishment subject to aggravated concurrent offenses in accordance with Article 38(1) of the Criminal Act. Therefore, all of the judgment of the court below shall be reversed.

However, the defendant's assertion of misunderstanding of facts or misunderstanding of legal principles is still subject to the judgment of this court, even though there is such reason of ex officio reversal.

3. Judgment on the Defendant’s mistake of facts or misapprehension of legal principles

A. As to interference with each business

1) "Business" subject to the protection of the crime of interference with business under the Criminal Act is an occupation or a continuous business, which is worth protecting under the Criminal Act from an unlawful infringement of other persons. The basis of a certain business or activity itself is not necessarily lawful unless it is a case where the degree of illegality is so excessive that it can not be easily acceptable for social life. Thus, the construction business of the instant construction business cannot be deemed unlawful or anti-social, to the extent that the construction business of the instant construction business is not protected (it is legitimate that the Ministry of National Defense approved the implementation plan of the instant naval base construction project without the Ministry of National Defense around January 2009, and approved the revision on March 17, 2010 after the environmental impact assessment, it is confirmed in the en banc Decision 201Du19239 Decided July 5, 2012, and it cannot be deemed unlawful construction business solely on the ground that the construction project is being conducted without preventing any error).

2) “Authority of force on the crime of interference with business” means any form of force that may cause confusion with the free will of a person, and as such, it includes violence, intimidation, social, economic, political status, and pressure by royalty. In reality, the victim’s free will is not required to control, but is sufficient force to suppress the victim’s free will. Whether such force constitutes force should be determined objectively by taking into account all the circumstances, such as the time and place of the crime, motive and purpose of the crime, number of persons, capacity, mode of force, type of work, and status of the victim. It does not necessarily mean that the person engaged in the business should be the force directly facing the person engaged in the business, but the act that makes the person impossible or considerably difficult to act by creating a sufficient condition to restrain the free will of the person’s free will is also included in such act (see, e.g., Supreme Court Decision 2009Do5732, Sept. 10, 2009).

According to the evidence duly adopted and examined by each court below, the defendant sited at the entrance of the construction site to prevent the progress of ready-mixed vehicles that intend to enter or depart from the construction site, or laid down onto the front of the construction site of this case by hanging strings onto the string, cutting down the strings, cutting down the strings before the entrance of the construction site of this case, and interfering with the construction of this case by such methods as entering the strings under or blocking the truck, and refusing the police's request to suspend the above act, but butinine is also refused even if the police's request to stop the above act, and it can be recognized that the construction vehicle did not enter the construction site of this case or suspended work. As long as the vehicle could not proceed due to these defendant's acts, this constitutes a threat of the other party's free will, which constitutes the crime of interference with business. Accordingly, it is recognized that the risk of interference with the construction of this case has occurred.

3) Furthermore, even if there was a purpose for the public interest, such as environmental protection, to the Defendants, the act of obstructing the naval base construction project by preventing the entry of construction vehicles, etc. cannot be deemed as a legitimate act or self-defense, which does not go against social norms, as a citizen’s appeal.

B. Violation of the Punishment of Minor Offenses Act

1) In light of the legislative purpose, form, etc. of the Punishment of Minor Offenses Act, the phrase “area, facility, or place where access is prohibited” under Article 1 subparag. 49 of the same Act shall be interpreted to include not only the place where access is prohibited by administrative disposition, etc. but also the land, etc. where the owner or legitimate occupant, etc. of the land, etc. has affixed a mark of prohibition of access, etc. for the purpose of preventing the entry of the general public

In full view of the following circumstances that can be recognized by the evidence duly selected and investigated by the court below, namely, the old dynasium and the coast areas are included in the construction site where construction was conducted with approval for reclamation of public waters (license) from the head of the Busan Regional Maritime Affairs and Port Office on March 3, 2010 (a person who has obtained a reclamation license may occupy and use public waters without obtaining permission from the management agency pursuant to Article 8 of the Public Waters Management and Reclamation Act) and the Navy Chief Chief of Staff installed warning signs, etc. prohibiting the entry of the general public on the outer wall to distinguish the construction site from the surrounding land in order to distinguish the construction site from the surrounding land, it is reasonable to view that the old dynasium and the coast areas constitute the place where entry under the Punishment of Minor Offenses Act is prohibited.

2) Furthermore, it cannot be deemed that the purpose of prohibiting entry and exit of the punishment provision of the Punishment of Minor Offenses Act is limited to the withdrawn places, etc., and it cannot be deemed that the prosecutor’s power of prosecution is excluded on the grounds that there has been a system for notifying the chief of a police station, etc. regarding violations of the Punishment of Minor Offenses Act.

4. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act without examining the Defendant and the prosecutor’s assertion of unfair sentencing on the grounds of ex officio reversal, and the following is again decided after pleading.

【Discretionary Judgment】

Criminal facts and summary of evidence

Since the criminal facts of the defendant recognized by this court and the summary of the evidence are the same as the corresponding column of each judgment of the court below, all of them are quoted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 314(1) and 30 (Interference with Business, Selection of Imprisonment), Article 1 Subparag. 49 of the former Punishment of Minor Offenses Act (Amended by Act No. 11401, Mar. 21, 2012); Article 30 of the Criminal Act (Unauthorized Access, Selection of Fine)

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2 and 3, and Article 50 of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act provides that the freedom of expression under the Constitution shall be exercised within the extent that the fundamental rights of others are not infringed, and that each of the crimes of this case was committed several times, and that the damage to the public corporations of this case was not significant, the defendant has no particular criminal record, and that each of the crimes of this case was committed with public purposes, not personal benefits, shall be considered as favorable circumstances, and the defendant's age, character and behavior, environment, motive and background leading to the crime of this case, method and consequence of the crime of this case shall be considered as favorable circumstances, and all of the other conditions of sentencing as shown in the records and arguments of this case shall be reviewed and decided as ordered.